Saying the state is violating a voter registration law, federal judge gives Texas until Thursday to propose a fix

Voters line up at an early voting station in Houston on Oct. 24, 2016. Poll workers said the lines were much longer than normal for early voting.
Michael Stravato for The Texas Tribune

Texas has less than a week to tell a federal judge in San Antonio how it will begin complying with the National Voter Registration Act, a decades-old federal law that aims to make it easier for people to register to vote by forcing states to allow registration when drivers apply for or renew their driver’s licenses.

U.S. District Judge Orlando Garcia ruled more than a month ago that Texas was violating the law, sometimes called the "Motor Voter Act," by not allowing Texas drivers to register to vote when they update their driver’s license information online. But it wasn’t clear until this week what exactly state officials would have to do to address that — and by when they’d have to do it.

Now, Texas and the Texas Civil Rights Project — which sued the state over the issue in 2016, saying Texas’ current system disenfranchised thousands of voters and violated the U.S. Constitution — have until Thursday to propose a detailed fix for the system. After that, Garcia will weigh the proposals and order a remedy.

“Defendants are violating [several sections] of the NVRA and their excuse for noncompliance is not supported by the facts or the law,” Garcia ruled in a strongly-worded 61-page opinion.

Texas Civil Rights Project President Mimi Marziani said her group will fight to get a fix in place in time for voters to register for this fall’s midterm elections. The deadline for Texas’ closest election — the May 22 primary runoff races — has already passed.

The Texas Civil Rights Project has offered to work with the state to submit a remedy both sides can support. The Texas Attorney General’s Office said Friday it was “reviewing the order and weighing our options.” But a spokesman already pledged last month to appeal Garcia’s ruling.

"We are not surprised by the order ... by this particular judge," spokesman Marc Rylander said at the time. "The Fifth Circuit will not give merit to such judicial activism because Texas voter registration is consistent with federal voter laws."

But, Marziani said, the state will not have the opportunity to appeal until after Garcia weighs in on the remedies each side proposes.

The lawsuit centers on what plaintiffs characterize as a confusing procedure for registering to vote through the Department of Public Safety’s online system. Plaintiffs said that Texans updating their driver’s license information online were asked whether they wanted also to register to vote; when users checked “yes” to that prompt, they were directed to a registration form that they had to print out and send to their county registrar.

Though the website specifies that checking yes “does not register you to vote,” that language has caused “widespread confusion” among Texans who incorrectly thought their voting registration had been updated, the plaintiffs claimed.

The state argued that its practices followed federal law. But lawyers for the Texas Attorney General’s Office could not convince Garcia to dismiss the case.

The state also argued that there are technological difficulties associated with online voter registration even in this narrow form, particularly because state law requires a signature when an individual registers to vote. But the state already keeps an electronic signature on file, officials told the court.

“With motor voters’ electronic signatures already in the voter registration agency’s possession, there is no reason why Defendants could not register them to vote in a simultaneous online transaction,” Garcia wrote.

Marziani summed up Garcia’s thorough order succinctly: “Legally, the state has to make this change, and technologically, there’s nothing standing in their way.”

Voting rights advocates are hopeful that Garcia’s ruling will open the doors to a wider system of online voter registration in Texas.

Texas is one of about a dozen states that does not yet provide for any form of online voter registration — a system critics warn would make the state’s elections vulnerable to voter fraud. Most experts reject those claims.

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